Mursal v Shalle & 6 others (Petition E080 of 2020) [2024] KEELRC 2384 (KLR)
The bottom line
#A Kenyan court refused to halt a judgment revoking a chief's appointment because he delayed too long, filed no appeal, and couldn't prove he was never served.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has satisfied the conditions for grant of stay of execution under Order 42 Rule 6(2)
- 2.Whether the judgment and decree of 19th December, 2022 should be set aside for want of service on the 1st Respondent
- 3.Whether the advertisement of 28th July, 2023 for the position of Chief Boji Heri Location should be stayed or suspended
Key legal issues
#Whether the conditions for stay of execution under Order 42 Rule 6(2) were met
The conditions were not met; there was no appeal, the application was made inordinately late, and the orders were overtaken by events
The court found no appeal had been filed against the judgment revoking the applicant's appointment, so there was nothing pending to stay. The applicant first moved court on 25th May 2023, months after the judgment of 19th December 2022, withdrew that application, and only returned after the position was advertised. The court held he had relaxed and came late and without clean hands.
Whether the judgment should be set aside for alleged non-service
The allegation of non-service could not be entertained absent cross-examination of the process server
The applicant claimed he was never served with summons, pleadings or hearing notices. The court held that this assertion could not be entertained because he never sought to cross-examine the process server who claimed to have served him, and his delay of nearly six months before his first application, which was later withdrawn, undermined his position.
Legal principles established
#- An applicant for stay of execution must satisfy the conditions of substantial loss, absence of unreasonable delay, and provision of security
- Mere commencement or likelihood of execution does not amount to substantial loss
Court orders
#- 1.The application dated 4th August, 2023 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 162(1)(a), 165(3)(b) and (c) of the Constitution; section 7 of the Fair Administrative Action Act; sections 1A, 1B and 3A of the Civil Procedure Act; Orders 22 Rule 22(1), 10 Rule 11, 19 Rule 2 and 51 of the Civil Procedure Rules
Relief refused
#Stay of execution of the judgment and decree dated 19th December, 2022
Applicant did not meet the conditions for grant of stay, there being no appeal against the judgment
Setting aside of the entire proceedings
Applicant came to court inordinately late and did not come with clean hands; the orders sought were overtaken by events
Stay and suspension of the advertisement of 28th July, 2023 for the position of Chief Boji Heri Location
Staying the judgment would seriously affect the appointing bodies and third parties, more than one and half years after the judgment
Leave to defend the suit
Applicant's assertion that he was not served was not entertained as he never sought to cross-examine the process server
Costs
The application is dismissed with costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The application is therefore found without merit and is hereby dismissed with costs.
the Applicant has not met the conditions for grant of stay of execution there being no appeal to challenge the Judgment of this court revoking his appointment
the 1st Respondent did not come to it with clean hands and came when it was inordinately late
No doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss.
Issues in the judgment
#The judgment refers to the application as dated 4th August, 2023 but paragraph 2 refers to stay of execution of judgment and decree dated 19th December, 2023, while elsewhere the judgment is stated to have been delivered on 19th December, 2022
The coram designates the judicial officer as 'Presiding Judge-Appeals Division' and the court and case number are not clearly stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mursal v Shalle & 6 others (Petition E080 of 2020) [2024] KEELRC 2384 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2384/eng@2024-09-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.